Exhibit (m)(32)
Agreement dated August 28, 2000
Between
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
And
The One Group Services Company
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▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
MUTUAL FUND DEALER AGREEMENT
To the Undersigned Distributor:
Ladies and Gentlemen:
We understand that you are principal distributor of shares ("Shares") of certain
mutual funds ("Funds") registered with the Securities and Exchange Commission
under the Investment Company Act of 1940 ("1940 Act"). You desire that ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney") act as a dealer with respect to the
sale of Shares to its customers. In consideration of the mutual covenants stated
below, you and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ agree as follows:
1 . Purchase of Shares at Public Offering Price. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney will use
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such efforts to sell Shares as it in its sole discretion determines, and
will not be required to sell any specified or minimum number of Shares of
any Fund. Sales of Shares through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will be at the
public offering price of such Shares (the net asset value of the Shares
plus any applicable sales charge), as determined in accordance with the
then effective prospectus(es) and statement(s) of additional information
used in connection with the offer and sale of the Shares (collectively, the
"Prospectus"). The public offering price will reflect scheduled variations
in or the elimination of sales charges on sales of Shares either generally
to the public or in connection with special purchase plans, as described in
the Prospectus. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney agrees to apply any scheduled
variation in or waivers of sales charges uniformly to all customers meeting
the qualifications therefor as specified in the Prospectus.
2. Rights of Accumulation and Letters of Intent. With respect to Funds sold
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with an initial sales charge, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇'▇ customers will be
entitled to reduced sales charges on purchases made under any letter of
intent or night of accumulation described in the Prospectus. In such case,
the concession from the public offering price retained by ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney will be based upon such reduced sales charge; however, if a ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ customer falls to fulfill a letter of intent, thereafter you
will pay ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney the amount required to reflect the
appropriate concession based oil the actual purchases made by the customer.
When placing wire trades, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to advise you of any
letter of intent executed by its Customer or any available right of
accumulation.
3. Exchanges and Redemptions. Exchanges of Shares between Funds and
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redemptions of Shares by a Fund or repurchases of Shares by you will be
effected in the manner and upon the terms described in the Prospectus.
Exchanges will be subject to such
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restrictions and charges as are provided for in the Prospectus. Redemptions
and repurchases will be subject to any applicable contingent deferred sales
charge, redemption fees or other charges as are provided for in the
Prospectus. Any order placed by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney for the repurchase or
redemption of Shares is subject to the timely receipt by you or the
pertinent Fund's transfer agent of all required documents in good order.
4. Handling and Receipt of Orders. The handling and settlement of purchase,
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exchange and redemption orders will be subject to the provisions of the
Prospectus and such further procedures you and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
determine to be appropriate from time-to-time, consistent with this
Agreement. Orders which ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney receives prior to the close of
business as defined in the prospectus and placed with you within the time
frame set forth in or consistent with the Prospectus shall be executed at
the public offering price next computed after they are received by ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇. You will provide such assistance to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney in
processing orders as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ reasonably requests. With each
order, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney will notify you of the state of residence of
the customer to whom the order pertains. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will be
responsible for the accuracy, timeliness and completeness of purchase,
redemption or exchange orders it transmits to you by wire or telephone. All
orders shall be subject to your confirmation.
5. Shareholder Servicing. If You and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney agree, oil an
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ongoing basis ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will provide shareholder servicing to
its customers who maintain investments in Shares. In so doing, ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney and its employees and representatives may provide the
following services, among others: answer customer inquiries regarding the
Funds and customer investments therein; assist customers in changing
dividend options; answer questions about special investment and withdrawal
plans, and assist customers in enrolling in such plans; distribute reports
and materials relating to the Funds to customers; assist in the
establishment and maintenance of accurate customer accounts and records,
including assisting in processing changes in addresses and other customer
information; and assist in processing purchase, exchange and redemption
orders.
6. Compensation and Expenses.
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A. With respect to Shares which are sold with an initial sales charge,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will retain such concessions from the public offering
price as are specified in the Prospectus. With respect to Shares which are
not sold with an initial sales charge, you will pay commissions to ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney at such rates as you and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ may determine
from time-to-time, consistent with this Agreement. Consistent with the
Prospectus and applicable law and regulation, from time-to-time you and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney may determine that ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will retain
the full amount of initial sales charges and/or that you will pay ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney additional compensation in connection with ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇'▇ sales of shares.
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B. If ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney provides shareholder services pursuant to
Paragraph 5 of this Agreement, you will pay ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ongoing
service fees at such rates as you and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney may determine
from time-to-time. Such payments shall be consistent with applicable law
and regulation and this Agreement. Your obligation to make payments to
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ under this Subparagraph 6B shall survive any
termination of this Agreement, and shall continue so long as ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney provides shareholder services described in Paragraph 5 of this
Agreement to its customers who hold Shares.
C. You will pay ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ongoing trail commission compensation
with respect to holdings by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney of Shares of Fluids with
respect to which you pay such compensation generally to dealers, at such
rates as you and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ may determine from time-to-time.
Payments under this Subparagraph 6C may be in addition to the payment of
service fees as described in Subparagraph 6B of this Agreement, and are
subject to applicable law and regulation and this Agreement. Your
obligation to make payments to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney under this Subparagraph
6C shall survive any long as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇'▇ term nation of this
Agreement, and shall continue so customers maintain their investments in
Shares.
D. With respect to expenses not specifically addressed elsewhere in this
Agreement, each party hereto will be responsible for the expenses it Incurs
in acting hereunder. Consistent with the Prospectus and applicable law and
regulation, from time-to-time you and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney may determine
that you will pay or reimburse ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ for expenses it incurs
in connection with selling Shares.
7. NASD Regulation. Each .party to this Agreement represents that it is a
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member of the National Association of Securities Dealers, Inc. ("NASD") and
each party agrees to notify the other should it cease to be such a member.
With respect to the sale of Shares hereunder, you and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
agree to abide by the Conduct Rules of the NASD, including but not limited
to the following:
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ shall not withhold placing customers orders for
Shares so as to profit itself as a result of such withholding. ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney shall not purchase any Shares from you other than for its own
investment or to cover purchase orders already received by it from its
customers.
B. If any Shares purchased by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ are repurchased by the
Fund which issued such Shares or by you for the account of that Fund, or
are tendered. for redemption, within seven (7) business days after
confirmation by you of the original purchase order for such Shares, no
compensation as set forth in Paragraph 6 above will be payable to ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney with respect to such Shares. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will
refund to you the full amount of any such compensation paid or allowed to
it on the original sale. You agree to notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney in
writing of any such repurchase or redemption within tell (10) business days
of the (late oil which the redemption is requested or Share certificates
are tendered to you, the pertinent Fund or its transfer agent. Termination
or cancellation of this Agreement will not relieve the parties from the
requirements of this subparagraph.
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C. Neither party to this Agreement will, as principal, purchase any Shares
from a customer at a price lower than the net asset value next determined
by or for the Fund that issued such Shares. Nothing in this subparagraph
shall prevent ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ from selling Shares for a customer to
you or to the Fund which issued such Shares at the net asset value then
quoted by or for such Fund (less any applicable contingent deferred sales
charge or other charges) and charging a fair commission or service fee for
handling the transaction.
8. Suspension of Withdrawal of Offering. You reserve the right to suspend
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sales of Shares of any Fund or withdraw any offering of Shares entirely.
9. Provision of Materials. At your expense, you will furnish ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Barney with current prospectuses and statements of additional information
of the Funds (including any supplements thereto), periodic reports to Fluid
shareholders and marketing and other materials you have prepared relating
to the Funds in such quantities as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ reasonably
requests.
10. Representations by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Concerning the Funds. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Barney and its agents and employees are not authorized to make any
representations concerning the Funds or their Shares except those contained
in or consistent with the Prospectus and such other written materials you
provide relating to the Funds or other statements or representations,
written or oral, which you furnish or make to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ about
the Funds.
11. Prospectus Delivery. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney will provide each of its
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customers purchasing Shares with the pertinent prospectus(es) prior to or
at the time of purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will provide any customer who
so requests with the pertinent statement(s) of additional information.
12. Liability and Indemnification
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A. You agree to be liable for, to hold ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, its officers,
directors and employees harmless from and to Indemnify each of them for any
losses and costs arising from: (i) any of your actions, and the actions of
your employees and affiliates, relating to the sale of Fund shares,
including but not limited to any statements or representations contained in
any sales or other material relating to the Funds you or your affiliates
provide to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ or any other statements or representations,
written or oral, concerning the Funds that you, your employees and your
affiliates make to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney; (ii) any material misstatement in
or omission of a material fact from a Fund's current prospectus or
statement of additional information; (Iii) any failure of any Fund or its
Shares to be properly registered and available for sale under any
applicable federal law and regulation; and (iv) any of your actions, or the
actions of your affiliates, relating to the processing of purchase,
exchange and redemption orders and the servicing of shareholder accounts.
You shall not be liable for any consequential damages.
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▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to be liable for, to hold you, your
officers, directors and employees harmless from and to indemnify them from
any losses and costs arising from: (i) any statements or representations
that ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney or its employees make concerning the Funds that
are inconsistent with either the pertinent Funds' current prospectus and
statement of additional information or any other material you have provided
or any other statements or representations, written or oral, you have made
to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ relating to the Funds; and (ii any of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney's actions relating to the processing of purchase, exchange and
redemption orders and the servicing of shareholder accounts. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ shall not be liable for any consequential damages.
C. The provisions of this Paragraph 12 shall survive the termination of
this Agreement.
13. Arbitration. If a dispute arises between you and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney with
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respect to this Agreement which the parties are unable to resolve
themselves, it shall be settled by arbitration in accordance with the then-
existing NASD Code of Arbitration Procedure ("NASD Code"). The parties
agree, that to the extent permitted by the NASD Code, the arbitrator(s)
shall be selected from the securities industry.
14. Miscellaneous. This Agreement shall be governed by the laws of New York
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State. This Agreement may be amended only upon the written agreement of
both parties hereto, and will1 terminate automatically in the event of its
assignment (as such term is defined in the 1940 Act). This Agreement may be
terminated, without penalty: (i) by either party on ten days' written
notice to the other party; (ii) at any time by the vote of a majority of
the members of the Board of Trustees of the Funds who are not interested
persons (as such term is defined in the ▇▇▇▇ ▇▇▇) of the Funds and who have
no direct or indirect financial interest in the operation of the Funds'
Rule l2b-I plan(s) or any agreement relating thereto, including this
Agreement; or (iii) by vote of a majority of the Shares of a Fund, with
respect to such Fund, on ten days' written notice to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇;
provided, that ill no event shall the survival of any obligation, as
provided for herein, be deemed a penalty for purposes hereof
If your payments to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney under Subparagraphs 6B and/or 6C
hereunder in whole or in part are financed by a Fund in accordance with a
Fund's plan of distribution adopted pursuant to rule l2b-l under the 1940
Act, then in the event of the termination of such rule l2b-1 plan of
distribution by a Fund's board of directors or trustees or shareholders,
you and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ agree to negotiate in good faith with respect
to whether and to what extent you will continue to make payments from your
own resources to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney as required by Subparagraphs 6B and
6C hereunder.
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This Agreement constitutes the entire agreement between you and ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ and supersedes all prior oral or written agreements between you and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney and its predecessors relating to the sale of-Shares by
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ as dealer.
Sincerely,
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇ Considin
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Dated: August 28, 2000
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AGREED AND ACCEPTED:
Distributor Name: The One Group Services Company
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Fund Complex: One Group Mutual Funds
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By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Dated: August 25, 2000
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